Opinion of THOMAS, J.

has retained title to inland submerged lands. Section 3(a) lands include those beneath both inland and territorial waters. In the case of a State, like Alaska, that received title to all of its submerged lands by virtue of the Submerged Lands Act, there is no need to consult conflicting presumptions, two-part tests, or anything other than the stated policy on which Congress has finally settled.1

The Court seems to agree with me that the Act is now the expression of Congress' policy on submerged lands retention. But, the Court also seems to view the phrase "expressly retained" in the Act as shorthand for the test we employed in Utah Div. of State Lands, a case decided three decades after passage of the Act. That is, to determine whether submerged lands have been "expressly retained," we must determine whether Congress "clearly intended to include land under navigable waters within the federal reservation," and whether Congress "affirmatively intended to defeat the future State's title to such land." 482 U. S., at 202 (emphases added). I find the Court's reading of the "expressly retained" language curious. First, as I discuss below, the language does not lend itself to the Court's construction. Second, it is not the case that the test set forth in Utah Div. of State Lands was simply a restatement of the test employed by the Court before the enactment of the Submerged Lands Act. Were it so, then the majority's assertion that the standard in the Act was described in pre-Act cases and simply "carried forward," ante, at 36, into Utah Div. of State Lands might be colorable. As it happens, in Utah Div. of

1 It is, I think, an open question whether the Submerged Lands Act has any operation as to land beneath inland waters in States that entered the Union prior to its enactment, thus initially obtaining title to submerged lands independently of the Act. Determining whether and how the Act applies to pre-existing States involves, at the least, complex retroactivity questions not presented by this case, given that Alaska became a State after the enactment of the Submerged Lands Act, which Alaska's Statehood Act expressly incorporates.

Opinion of THOMAS, J.

State Lands, the Court addressed for the first time the argument that a retention-as opposed to a conveyance-of submerged lands by the United States could defeat a future State's title to those lands, 482 U. S., at 200. In response, the Court crafted the two-part test relied on by the majority today. Id., at 202. Whatever can be said of that test, it was not before the drafters of the Submerged Lands Act. Accordingly, there is no reason to believe that, when Congress employed the phrase "expressly retained," it intended a meaning not obvious from those words and not set forth in an opinion of this Court until three decades after the Act became effective.

But the Submerged Lands Act, I think, embraces at least part of the policy that we had attributed to Congress in several pre-Act cases. We have, for example, stated that we would not affirm a conveyance of inland submerged lands that was not set out in "clear and especial words," Martin v. Lessee of Waddell, 16 Pet. 367, 411 (1842), or "unless the claim in terms embraces the land under the waters of the stream," Packer v. Bird, 137 U. S. 661, 672 (1891). It is, I believe, the meaning of these passages that "expressly retained" captures. Because the only "lands" described in §3(a) of the Act are submerged lands, the requirement that any retention of them be "expres[s]" means that the retention must "in terms embrac[e] the land under the waters." Accordingly, contrary to the Master's conclusion and much of the majority's analysis, a retention of lands cannot be inferred from, for example, the purpose of a given attempted federal undertaking. To be sure, prior to the passage of the Submerged Lands Act, the Court looked beyond the words used in efforts to prevent passage of submerged lands to newly created States. For example, in United States v. Holt State Bank, 270 U. S. 49 (1926), the Court noted that "disposals by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or other

Opinion of THOMAS, J.

wise made very plain." Id., at 55 (emphases added). After the enactment of the Submerged Lands Act, it appears that not only is retention of submerged lands not "lightly to be inferred," it is not to be inferred at all. In this respect, Congress has required of itself a higher standard than either the Master or the majority attribute to it.2

Neither the Master, in his exhaustive Report, nor the majority, in its only slightly less exhaustive opinion, cites anything meeting what I believe to be the requirement of an express retention of submerged lands within the boundaries of the National Petroleum Reserve. The majority focuses, instead, on the "purpose of a conveyance or reservation" as a "critical factor in determining federal intent." Ante, at 39 (emphasis in original). The Court concludes that the purposes for establishing the Reserve-primarily to ensure federal possession of petroleum resources within the Reserve's boundaries-would be undermined if the United States did not retain the submerged lands. So "[i]t is simply not plausible," says the majority, "that the United States sought to reserve only the upland portions of the area." Ante, at 39-40. To me, these considerations are wholly beside the point. Congress, when it incorporated the Submerged Lands Act into § 6(m) of the Alaska Statehood Act, Pub. L. 85-508, 72 Stat. 343, demanded of itself an express retention of submerged lands to prevent their passage to Alaska. If Congress had the purpose attributed to it by the majority, the best way—indeed, the only legal way-for it to realize that purpose was to state "expressly" that the submerged lands inside the

2 Section 5(a)'s standard is at the same time somewhat more generous to the United States. In Utah Div. of State Lands v. United States, 482 U. S. 193 (1987), we asserted that a reservation-as opposed to a conveyance of land would not be held to defeat state title to submerged lands even if those lands were manifestly included in the reservation where there was lacking an indication from Congress that it "affirmatively" intended to defeat a future State's title to those lands. See id., at 202. This was, we thought, required by congressional policy. I do not, however, perceive that requirement in the language of § 5(a).

Opinion of THOMAS, J.

National Petroleum Reserve were retained for the United States. It may well be, as the majority concludes, that Congress can retain lands by ratification of or reference to an earlier instrument describing those lands (the majority points here to President Harding's 1923 Executive Order). But, congressional ratification of an instrument that does not-as President Harding's order does not "in terms embrac[e] the land under the waters" cannot, anymore than a statute that fails to do so, constitute an express retention as required by the Submerged Lands Act.3

Absent an express retention of submerged lands, the Submerged Lands Act effected the transfer of all submerged lands within the Territory of Alaska to the State of Alaskaincluding those within the boundaries of National Petroleum Reserve Number 4. I dissent from the Court's contrary conclusion.

II

The majority rejects the Master's recommendation that Alaska be found to hold title to the submerged lands within the Arctic National Wildlife Refuge. Although I acknowledge that the question is close, I agree with the Master and would overrule the United States' exception.1

3 The majority points to a prestatehood enactment, Pub. L. 85-303, §2(a), 71 Stat. 623, granting certain offshore lands to the Territory of Alaska, but excepting from that grant "oil and gas deposits located in the submerged lands"" along the Arctic coast of the Reserve. See ante, at 42 (emphasis in original). This statute is said to "reinforc[e]" the "conclusion that Congress was aware when it passed the Alaska Statehood Act that the Reserve encompassed submerged lands." Ibid. But the statute proves little more than that Congress was, circa Alaska's statehood, capable of expressly referring to submerged lands. It does not-and the majority does not claim that it could-operate as an express retention.

4 This conclusion arises out of my review of the United States' exception to the Master's recommendation on Question 9. Before I turn to it, I must admit some bafflement as to why the majority undertakes a review of the Master's recommendation on Question 10. See ante, at 51-55. In answer to Question 10, the Special Master, using reasoning parallel to that of his discussion of National Petroleum Reserve No. 4, concluded that the

Opinion of THOMAS, J.

The United States contends that the submerged lands within the Refuge were "expressly retained" when Alaska became a State. Section 5 of the Alaska Statehood Act keeps for the United States "title to all property, real and personal, to which it has title, including public lands." 72 Stat. 340. The various subsections of §6 of the Statehood Act exclude from that general retention a variety of lands. Section 6(e) provides that federal agencies will “transfe[r] and conve[y]" to Alaska "[a]ll real and personal property of the United States situated in the Territory of Alaska which is specifically used for the sole purpose of conservation and protection of the fisheries and wildlife of Alaska" under three statutes. Ibid. A proviso to §6(e), however, states that "such transfer shall not include lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife." Id., at 341.5

The United States contends that the Refuge was, as of Alaska's statehood, "set apart as [a] refug[e]." This was accomplished, it is argued, by means of an application filed with the Secretary of the Interior in November 1957 by the Bureau of Sport Fisheries and Wildlife "to establish an Arctic Wildlife Range" within certain lands in Alaska's northeastern corner. See Report of Special Master 447, n. 1 (Report)

application for withdrawal of the land within the Refuge included submerged lands. Alaska failed to file an exception to that recommendation, and we have no more occasion to take it up than any of the several other questions on which the Master offered recommendations to which neither party has objected. Because it is not before us, I express no view on the Master's conclusion as to Question 10.

"The term "lands" employed in §6(e) is presumably to be read in pari materia with the same term in §5. Section 5 makes no express mention of submerged lands, so one can inquire whether, under the Submerged Lands Act, §5 (never mind § 6(e), which, as a proviso to an exception to §5, cannot outstrip §5) "expressly retained" submerged lands for the United States. Alaska, in forgoing its right to except to the Master's recommendation as to Question 10, has, I think, given up its opportunity to make any such argument and I will not take it up.